Freedom of Speech Versus Social Responsibility

Susan M. Anstead

CSMN 601 -- Spring 1997

I. Executive Summary

Since the Internet was brought in to the home in the late 1980's, people have applauded its innovations and decried its shortcomings. We recognize the high educational, business, and personal value of the Internet, but also question some of the controversial material that is also available.

At issue now is the controversy between the rights of Americans under the First Amendment of the United States Constitution and the rights of Americans to feel they will not be subjected to material they believe to be inappropriate. The U.S. Courts have been involved in similar fights pertaining to other forms of media, such as print, radio, and television. Now Congress and the Courts are trying to apply these same laws to the Internet.

But should the Internet be subject to these same laws? Can they be enforced? There seem to be no consistent answers to these questions. Whose responsibility is it to control the content of the Internet, and whose responsibility is it to ensure minors do not access material that is inappropriate for their age group?

II. Introduction

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." [1]

When our Founding Fathers wrote these words some 221 years ago, they could never have imagined the controversies that would come to surround these simple phrases. After all, this was well before the days of widespread use of the press, radio, public and cable television, and most recently, the Internet.

The right to "free speech" in the press, radio, and television have been argued over the course of many years. The growth of the Internet has now brought with it many of the same issues that arose when other forms of media were introduced. On one side are those who believe that all forms of communication are protected by the First Amendment of the United States Constitution, while on the other side are those who believe that some topics are so morally offensive that they should either be prohibited, or at a minimum, have restricted access.

However, even if both sides were in agreement as to the publication or distribution of offensive materials, there would still be questions about how the information would be monitored. Controlling access to earlier forms of communication proved rather straight-forward, as they were more tangible. For example, it is presently illegal in the United States to provide pornographic books, magazines, and videos to minors. To obtain these items, one must either order through a catalog (generally requiring a check or a credit card, not usually available to minors), or in person where age identification is straight-forward.

But contrary to other forms of media, the Internet is a somewhat anonymous method of international communication, with no governing body. The Internet has few comparisons to the sales clerk at the counter, and those that do exist have no legal enforcement. In addition, being in an International environment, that which is considered illegal or offensive in the United States may not hold the same stigmas in other countries. Laws that are enacted in the United States do not apply internationally and cannot be enforced outside our borders.

We are faced then with an attempt to restrict access to information deemed unsuitable to certain populations, while maintaining the First Amendment freedoms of everyone.

III. The Rise and Expansion of the Internet

A. History

What is currently known as the Internet began with a project called ARPANET in 1969. The Advanced Research Projects Agency (ARPA) of the Department of Defense was initially interested in developing a communication system that would survive a catastrophic national event, such as a nuclear war. It linked the military, defense contractors, and universities conducting defense research through dedicated phone lines.[2]

Once this system was established, ARPA began to develop new protocols for communicating between different types of computer networks. Businesses and universities created their own networks running on this protocol and included a high-speed "backbone" network. As speed increased, network traffic moved away from ARPANET and towards today's Internet, and ARPANET formally ceased operations in 1990. During this time, many independent providers developed their own networks to provide Internet access to the general public.[3]

The Internet can be defined as a series of linked independent networks that use the same protocols. As a tangible entity, the Internet does not exist. It is not in one central location. The Internet is not owned or controlled by any one governing body, rather each independent network maintains its own control.

B. Access to the Internet

Access to the Internet is not difficult; the only things required are a computer and a modem. Once an individual has the necessary hardware, there are several means of accessing the Internet. Most businesses and universities today maintain an internal network for their users and many of these have been linked to the Internet. Internet Service Providers (ISPs) are commercial services which provide Internet access to the general public for a monthly or yearly fee. Finally, there are national on-line services (such as America On Line, CompuServe, and Prodigy) which not only provide Internet access, but also their own private network programming.

In addition, there is a movement to place Internet access in every classroom in America, making the Internet a focal point of education. Public libraries nationwide are also making the Internet accessible to their patrons. Depending on the technological advancement and the community resources, most individuals in the community will have access to the Internet.

The number of individuals accessing the Internet has grown at amazing proportions. In 1981, only 300 clients were connected to the Internet. By 1996, this number had grown to over 9 million, and is increasing every day. It is estimated that by the year 1999, over 200 million people worldwide will be connected to the Internet.[4]

C. Internet Resources

Once an individual is connected to the Internet, they will find a plethora of information at their fingertips. The information is presented in a number of different formats.

1. Electronic Mail

Electronic Mail, or e-mail, is probably the most popular of the Internet features. Using e-mail, individuals can, within a matter of minutes, communicate with others throughout the world by sending and receiving messages. E-mail messages can contain not only text, but also computer programs, graphical images, sounds, and so on.

2. World Wide Web

The World Wide Web (the Web) consists of a series of documents stored on different networks throughout the world. Each document is formatted in hypertext markup language (HTML), the standard Web language. Documents are stored in what are commonly referred to as Pages. Web Pages can contain text, graphics, sounds, video, and links to other Web Pages.

3. File Transfer Protocol

File Transfer Protocol (FTP) is a means by which a user can connect to a server and copy one or more of the files on that server to their own computer. Generally, the user must have an account to access the files, but in some instances, files are accessible to the general public.

4. Gopher

Gopher servers are similar to the World Wide Web in that documents are stored on different networks throughout the world. However, Gopher works through a series of menus which the user must travel through to reach their intended file. Most Gopher documents contain little graphics or graphical interface.

5. Usenet

Usenet groups offer open discussions of a particular topic. They are similar to the message boards found in many of the national on-line services. Participants "post" a message to the Usenet group, and the message is relayed to cooperating networks throughout the world. Virtually any topic imaginable has a Usenet group devoted to it.

6. Internet Relay Chat

Internet Relay Chat (IRC) is the Internet's means of real-time communication. Through this system, two or more users can type messages to each other which appear almost instantly on the other's computer.

D. Material Contained on the Internet

To summarize the content of the Internet is almost impossible. It ranges from informational Web Pages created by businesses and government to library collections. One can check the latest stock quotes, get a weather report for any area in the world, or order flowers for their spouse. Online newspapers and magazines exist in almost every language. Educational resources are available, ranging from colleges and universities to general health databases. In addition, individuals can create their own Web Pages containing topics of their choosing.

But despite all this quality material on the Internet, there also exists material that is creating a great deal of controversy. CyberNot, an Internet blocking program, categorizes these areas as follows: Violence/profanity, partial nudity, nudity, sexual acts (graphic or text), gross depictions (graphic or text), racism/ethnic impropriety, satanic/cult, drugs/drug culture, militant/extremist, gambling, questionable/illegal, and alcohol/beer/wine.[5] Over the past few years, this material has created enough controversy that everyone from independent organizations to the United States Congress to the United States Supreme Court have become involved.

IV. Defining Offensive or Indecent Material

The Courts in the United States have been struggling with the definitions of obscenity and indecency for years. The first attempt occurred in 1873 when Congress passed the Comstock Act. This Act was an amendment to the Federal postal code and forbade the use of public mail for obscene materials. However, this Act failed to define what would be classified as obscene.[6]

The Supreme Court provided its first definition of obscenity through two cases heard simultaneously in 1957 (Roth v. United States and Alberts v. California). The result of their decision became known as the Roth Test. The Roth Test requires that to label a work obscene, "an average person, applying contemporary community standards, must find that the dominant theme of a work as a whole appeals to the prurient interest."[7] The Court recognized several types of sexual depictions as protected, including that which is artistic, literary, or has a scientific purpose.[8]

In 1968, the Court addressed the sale of pornographic magazines to minors. In Ginsberg v. New York, the Court upheld the constitutionality of a criminal statute "that punished the sale to minors of sexually explicit magazines that were patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors."[9]

Over the next 20 years, the Courts continued to fight with the problem of how to handle works that were sexual in nature, but did not meet the test of obscenity. In 1978, the Supreme Court was finally given the chance to address this quandary in FCC v. Pacifica Foundation. This case stemmed from the broadcast of George Carlin's twelve minute monologue, "Filthy Words", which was broadcast over the radio at 2:00 p.m. The Court ruled that the monologue was "patently offensive", and although it could not be banned, the FCC had the authority to restrict its broadcast. This laid the groundwork for the FCC's definition of indecency as "language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs".[10]

What was most important about Pacifica was that it addressed the different standards that apply to material directed at consenting adults and that directed towards children. The Court ruled that material that is not obscene according to the adult standard could be restricted for children or non-consenting adults. Since radio broadcasts are easily accessible to children, anything meeting the definition of indecent could be restricted. As a result, the FCC adopted a policy that forbade the use of Carlin's "Filthy Words", and other similar broadcasts, before 10:00 p.m., when children were more likely to be listening.[11]

V. Conquering Obscenity and Indecency in a New Medium -- The Internet

The issue of obscenity and indecency on the Internet is more complicated than for other means of communications because for the first time, users have almost immediate access to an un-monitored, international medium, within the privacy of their desktop. This has brought forth numerous attempts by the United States federal government to regulate this new medium.

A. Dial-a-Porn Laws.

In 1989, under the leadership of Senator Jesse Helms (R-NC), Congress revised the Federal Communications Act of 1934 to ban the use of a telephone for "any indecent communication for commercial purposes which is available to any person under 18 years of age or to any other person without that person's consent, regardless of whether the maker of such communication placed the call."[12] It does not prohibit indecent speech, but requires that such calls be blocked or scrambled, or require a code for access. Although this revision was intended to regulate the "Dial-A-Porn" industry, it sets forth a basis for regulating access to obscene and indecent Internet content. Since a large part of Internet access is obtained through telephone lines, one could interpret this law as applying to data as well as voice transmissions over telephone lines.[13]

B. Communications Decency Act of 1996.

Throughout the early 1990's, Congress made numerous attempts to pass legislation that would assist in regulating material available through the Internet. Finally in 1996, as part of the Telecommunications Bill of 1996, Congress passed the Communications Decency Act (CDA). With this legislation, Congress not only acknowledged the quality material available on the Internet, but also took steps to prevent access to obscene or indecent material by minors. It takes the law set forth by the Supreme Court in Pacifica, and applies it to the Internet.

The Communications Decency Act contains three primary restrictions on the distribution of sexually explicit material to children, as follows:

The "transmission provision" imposes criminal penalties on "Whoever in interstate or foreign communications by means of a telecommunications device knowingly makes, creates, or solicits, and initiates the transmission of, any comment, request, suggestion, proposal, image or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication placed the call or initiated the communication."[14]

The "specific child provision" imposes criminal penalties on "Whoever in interstate or foreign communications knowingly uses an interactive computer service to display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication."[15]

The "display provision" imposes criminal penalties on persons who use an interactive computer service to "display" patently offensive sexual material "in a manner available to a person under 18 years of age."[16]

Violators of the above provisions are subject to a $200 fine and/or imprisonment not to exceed two years.[17]

The Communications Decency Act also provides a defense against prosecution for a person who "has restricted access to such communication by requiring use of a verified credit card, debit account, adult access code, or adult personal identification number."[18] In addition, a defense against prosecution is also available to those who have "taken, in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors"[19] to their indecent communications.

However, the ink was hardly dry on the Communications Decency Act when the ACLU began the first of the court challenges, shortly followed by the second filed by Joe Shea of the American Reporter, an online newspaper.

C. ACLU v. Reno CDA Challenge (Philadelphia, Pennsylvania)

In February 1996, the American Civil Liberties Union (ACLU) filed suit against the United States Government in the US District Court for the Eastern District of Pennsylvania. They based their motion for injunction on their belief that the CDA violates First Amendment free speech and Fifth Amendment due process rights. The case was decided in favor of the plaintiffs in June 1996, and a preliminary injunction against enforcement of the CDA was granted. In their conclusions, the Judges explained why they believed this injunction should be granted.[20]

1. Vagueness of Definitions

The CDA outlaws activity on the Internet that is "indecent or offensive" as defined by "contemporary community standards."[21] However, at no point are the terms "indecent" or "offensive" defined. Would photographs "appearing in National Geographic, or a travel magazine of the sculptures in India of couples copulating in numerous positions, a written description of brutal prison rape, or Francesco Clemente's painting Labrinth"[22] fall under the jurisdiction of the CDA? In addition, they questioned by which community's standards the material will be judged. They gave as an example the Broadway play, "Angels in America", which conveys homosexuality and AIDS portrayed in graphic language. The Judges stated that this material was "routinely acceptable according to the standards of New York City...but may be far less acceptable in smaller, less cosmopolitan communities of the United States."[23]

2. Rights of Adults

The Judges argued that by using standards set forth in the CDA to prevent minors from accessing "indecent" and "offensive" material, the effect also extends to the free expression of adults. If the plaintiffs are to comply with the CDA, they risk "seriously impeding their posting of online material which adults have a constitutional right to access".[24]

3. Blocking Material

If the CDA is upheld, how are computer providers to ensure that access is restricted to a certain population? Many options for restricting access were presented, and are discussed in detail later in this paper. But the Judges determined that "it is either technologically impossible or economically prohibitive for many of the plaintiffs to comply with the CDA."[25] In addition, they found that "non-commercial organizations and even many commercial organizations using the [World Wide] Web would find it prohibitively expensive and burdensome to engage in the methods of age verification proposed by the government, and that even if they could attempt to age verify, there is little assurance that they could successfully filter out minors."[26]

D. Shea v. Reno CDA Challenge (New York)

The second of the CDA challenges was filed by Joe Shea, editor of the American Reporter, an online newspaper, in the United States District Court for the Southern District of New York. Shea also cites the vagueness and overbreadth of the CDA as the basis for his case.[27] The New York Court held that a preliminary injunction should be granted, but some of their conclusions were different from those in the Pennsylvania case.

1. Vagueness

The Plaintiffs in Shea first challenged that the CDA was unconstitutional based on its lack of definition of the terms "offensive" and "indecent". In contrast to the decision in ACLU v. Reno, the Judges in New York concluded that the plaintiff had not demonstrated that the CDA is unconstitutionally vague. They stated that "the definition of material regulated by this section is a familiar one, repeatedly upheld against vagueness challenges in a line of jurisprudence concerning television and radio broadcasting, cable programming, and commercial telephone services."[28] Specifically, the Judges cited the 1978 decision in Pacifica.

2. Overbreadth

The Plaintiffs continued by claiming that the CDA is overbroad and thus invalid. They stated that the CDA applies to "a significant amount of Internet content with serious literary, artistic, political, or scientific value, and that the government cannot demonstrate any compelling interest in restraining the availability of such material on the Internet."[29] In addition, they claimed that the CDA "is not narrowly tailored, in that it fails to preserve for adults the ability to engage in certain constitutionally protected communications, effectively acting as a total ban on indecent communications by interactive computer systems."[30]

On this item, the Plaintiffs prevailed. In their conclusion, the Judges stated, "Because content providers using most forms of Internet communication have no way of transmitting indecent content with certainty that it will not reach a minor, the only way for a content provider to comply with [the CDA], standing alone, would be to refrain from transmitting any indecent content. Because adults would lack means of engaging in constitutionally protected indecent communications over the Internet without fear of criminal liability, the statute would unquestionably be unconstitutional."[31]

E. Appeal to the United States Supreme Court

Shortly after the decision in the Philadelphia case, the Government filed an appeal to the United States Supreme Court. The Government's arguments were: 1) "The CDA's indecency restrictions constitutionally advance the government's interests in protecting children and in ensuring that persons are not deterred from using the Internet and other interactive computer services." 2) The CDA's indecency restrictions are not unconstitutionally vague." and 3) The preliminary injunction entered by the District Court was in any event far too broad in scope."[32]

1. The Government's Appeal - Pre-Trial Documents
a) Protecting Children While Maintaining Access

The Appellants cited numerous Court decisions in backing up their claims. They stated that the court has developed several principles for evaluating the constitutionality of restrictions on indecent communications in various context. In particular, they cited Pacifica and Ginsburg, outlined above. Their specific arguments on this point are as follows:

(1) "Because children generally do not possess the same capacity as adults to make informed choices about whether to view indecent material, and because such speech may have deep and harmful effects on children that cannot readily be undone, there is no First Amendment right to distribute indecent material to children."[33]

(2) "When the dissemination of indecency to adults poses a substantial risk that children will be exposed to the material, government may channel the indecent communications so as to minimize the risk of children being exposed."[34]

(3) "Government may adopt reasonable zoning schemes to address the secondary effects of sexually explicit communications."[35]

(4) "Government generally may not adopt an outright ban on the dissemination of indecent material to adults."[36]

(5) "When government restrictions substantially burden or deter adult access to indecent communications, and a significantly less burdensome alternative will satisfy the government's interests equally well, the government must choose the less burdensome alternative."[37]

b) Vagueness

At issue here is the definition of indecency. The appellants state that the Court established through Miller v. California (1973) the definition of what states could regulate as obscenity. Namely, material that "appeals to the prurient interest; depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and lacks serious literary, artistic, political, or scientific value."[38] The admit that there may be cases "in which it is difficult to determine the side of the line on which a particular fact situation falls", but that is not a "sufficient reason to hold language too ambiguous to define a criminal offense."[39]

c) Scope of the Preliminary Injunction

This argument is much more legal in nature than those outlined previously. The Government states that the Philadelphia Court found only the "display provision" of the CDA unconstitutional. The CDA states that "if any provision of this chapter or the application thereof to any person or circumstances is held invalid, the remainder of the chapter and the application of such provision to other persons or circumstances shall not be affected thereby."[40] In other words, since only the "display provision" was held unconstitutional, the "transmission and specific person provisions" should not be affected.

2. Other Pre-Trial Documents

Many groups submitted briefs supporting either the Government or the ACLU in the Supreme Court Appeal of the Communications Decency Act. The content of each brief is too complex to outline here, however it may be important to note which organizations supported which side of the Appeal.

a) In Support of the Government
(1) Brief Amici Curiae of Enough is Enough. Includes The Salvation Army, National Political Congress of Black Women, Inc., The National Council of Catholic Women, Victims' Assistance Legal Organization, Childhelp USA, Legal Pad Enterprises, Inc., Focus on the Family, The Coalition for the Protection of Children and Families.[41]

(2) Brief of Members of Congress. Includes Senators Dan Coats, James Exon, Jesse Helms, Charles Grassley, Christopher Bond, James Inhoe, Rick Santorum, Rod Gramms. Includes Representatives Henry Hyde, Bob Goodlatte, Jim Sensenbrenner, Steve Schiff, Chris Smith, Duncan Hunter, Roscoe Bartlett, Walter Jones, Sherwood Boehlert, Mark Souder, Steve Largent.[42]

b) In Support of the ACLU
(1) Brief of Appellees. Includes ACLU; Human Rights Watch; Electronic Privacy Information Center; Electronic Frontier Foundation; Journalism Education Association; Computer Professionals for Social Responsibility; National Writers Union; Clarinet Communications Corp.; Institute for Global Communications; Stop Prisoner Rape; AIDS Education Global Information System; Bibliobytes; Queer Resources Directory; Critical Path AIDS Project, Inc.; Wildcat Press, Inc.; Declan McCullagh d.b.a. Justice on Campus; Brock Meeks d.b.a. Cyberwire Dispatch; John Troyer d.b.a. The Safer Sex Page; Jonathan Wallace d.b.a. The Ethical Spectacle; Planned Parenthood Federation of America.[43]

(2) Brief of Appellees. Includes American Library Association; America Online, Inc.; American Booksellers Association, Inc.; American Booksellers for Free Expression; American Society of Newspaper Editors; Apple Computer, Inc.; Association of American Publishers, Inc.; Association of Publishers, Editors, and Writers; Citizens Internet Empowerment Coalition; Commercial Internet Exchange Association; CompuServe Incorporated; Families Against Internet Censorship; Freedom to Read Foundation, Inc.; Health Sciences Libraries Consortium; Hotwired Ventures LLC; Interactive Digital Software Association; Interactive Services Association; Magazine Publishers of America; Microsoft Corporation; The Microsoft Network LLC; National Press Photographers Association; Netcom Online Communication Services, Inc.; Newspaper Association of America; Opnet, Inc.; Prodigy Services Company; Society of Professional Journalists; Wired Ventures, Ltd.[44]

(3) Brief Amicus Curiae of the Chamber of Commerce of the United States of America.[45]

(4) Amicus brief's were reportedly filed by the following additional organizations: Site Specific, Inc. and Jon Lebkowsky; Reporters' Committee for Freedom of the Press; National Association of Broadcasters with ABC, NBC and CBS; Apollo Media; Feminists for Free Expression; New York State Bar Association; Playboy; Association of National Advertisers and the Media Institute.[46]

3. Arguments in Court

On Wednesday, March 19, 1997, the appeal of ACLU v. Reno came before the Supreme Court of the United States for oral argument. Immediately it appeared that the Justices acknowledged the complexity of the case, as Chief Justice Rehnquist allotted 35 minutes to each side, rather than the 30 minutes which is normal for a Supreme Court Appeal.[47]

Interestingly, the Justices did not address their questions to the availability or accessibility of questionable material on the Internet. Rather, their questions were directed more towards the constitutionality of "prohibiting speech", methods of restricting access, and the definition of the Internet as a medium or a public forum.

a) Prohibiting Speech

Justice Breyer posed the following question to the Government: "Suppose a group of high school students decide to communicate across the Internet, and they want to tell each other about their sexual experiences, whether those are real or imagined. Every high school student who would do this is then guilty of a Federal crime, and subject to years in prison?"[48] These same conversations occur today over the telephone and are not illegal. Why should they be illegal simply because they occur on the Internet?

Justice Scalia later provided an example to the ACLU: "Let's take printed communications. It is certainly lawful -- and we have upheld provisions that require pornographic materials to be kept away from minors and not to be sold in such a fashion that minors can obtain them. This effectively excludes the publishers of pornographic publications from vending their material on the streets in vending machines, where minors can gain access to them. Do we say it's unconstitutional because they cannot use that manner of communication? I don't think so. We say tough luck, you have to sell it in stores."[49] The ACLU argued that unlike printed communications, many Internet services are interactive (news groups, chat rooms, etc.), and would thus be much more difficult to control.

However, the greatest debate was over the issue that banning certain communications from the reach of minors effectively bans them from the reach of consenting adults. The ACLU maintained that this then infringes on the rights of the consenting adults.

b) Methods of Restricting Access

Significant debate occurred over the feasibility of many of the commercial blocking programs. These programs range in cost from free to around $50.[50] Both sides acknowledge the availability of such programs, but disagree as to their ability to consistently block questionable material. The Government contends that since the Internet is growing daily, it is virtually impossible for the makers of these programs to keep up with all the changes that would be required. A software package could be purchased one day, and out of date the next. The ACLU contends that the blocking programs are successful, and the major online service providers (e.g., America Online, CompuServe) provide versions at no cost.[51]

Other methods of restricting access were discussed, including "tagging", adult identification codes, credit card verification, and the CGI script.[52] Again, both sides were in opposition to the viability of these options.

c) Definition of the Internet

The Justices seemed very interested in discussing the classification of the Internet. Is it a public forum, or just another medium of communication?[53] This could become a significant factor in the decision of the Court, as that which is considered legal in the privacy of ones home is often considered illegal in a public forum.

4. Conclusions

The Supreme Court is expected to render their decision in this case before the end of the current term, which ends in July of 1997. Given the ongoing debate in the media and the public regarding this case, it is bound to be a controversial decision, no matter which way the Justices decide.

VI. How to Build a Bomb -- Internet Style

Another issue of Internet content that has been raised is the availability of bomb-making "recipes" on the Internet. Those active in Internet activities frequently hear stories about instructions on making bombs ranging from those similar to that used in the Oklahoma City bombing in 1995 to nuclear bombs.

Where these instructions are available, there is usually some type of disclaimer, indicating that they should only be used for "academic use". The following was found by the writer as the introduction to a document on making a nuclear bomb:

 "The information contained in this file is strictly for academic use alone. Outlaw Labs will bear no responsibility for any use otherwise. It would be wise to note that the personnel who design and construct these devices are skilled physicists and are more knowledgeable in these matters than any layperson can ever hope to be... Should a layperson attempt to build a device such as this, chances are s/he would probably kill his/herself not by a nuclear detonation, but rather through radiation exposure. We here at Outlaw Labs do not recommend using this file beyond the realm of casual or academic curiosity."[54]

A. Attempts to Legislate Bomb-Making Material on the Internet

In 1995, Senator Diane Feinstein (D-CA) introduced a bill in the Senate that would ban bomb recipes.[55] Presented as part of President Bill Clinton's Counterterrorism Act, the bill would amend the "bomb training" law, making it "illegal to distribute bomb information by any means if the distributor intends or knows that the information will be used to commit a crime."[56] Violators would be subject to up to 20 years in prison and a $250,000 fine.[57] Although this bill did not specifically reference the availability of such material on the Internet, by using the words "by any means", the Internet would be affected.

The Senate Judiciary Subcommittee on Terrorism, Technology, and Government Information held hearings on Feinstein's bill. Numerous examples of bomb making material on the Internet were provided, but so were examples obtained through bookstores and libraries. It became clear that whatever the medium, a great deal of bomb making instructions are easily available.

The Senate adopted Feinstein's bill, and later the entire Counterterrorism Act. However, the bill has been stalled in the House of Representatives, and therefore has not been enacted in to law.[58]

VII. Discussion

 Despite the laws that have been passed, and the decisions of the courts, there is still much controversy over what material should be allowed on the Internet, and how such material should be regulated.

A. Issues Relating to Offensive Internet Content
1. Who Defines Offensive?

Various courts in the United States have attempted to define offensive, indecent, and patently offensive. But even with these definitions, many disagreements still exist. For example, what is considered offensive in the mind of someone with a liberal outlook will vary greatly from that of someone with a conservative outlook.

2. Cultural Differences

As discussed in the ACLU v. Reno CDA Challenge in Philadelphia, what is considered indecent or offensive in one community may be considered acceptable in another. Legislation and court decisions refer to "contemporary community standards"[59], but does not define this standard to be consistent nationwide. Is it expected that those in Omaha, Nebraska maintain the same community standards as those in New York City?

What creates an even bigger controversy is that the Internet is an international medium. The United States can pass all the laws it wants, but these are ineffective in controlling what is produced overseas. But even if they were effective, would it be right? The news has produced numerous stories over the years about the conservative laws in Singapore and the liberal laws in the Netherlands. As independent nations, they have the right to create their own laws. Since the Internet is an independent medium, users will have to find ways to accommodate the international freedoms that exist, while maintaining their own right to be free from what they consider to be indecent or offensive material.

3. Age Appropriate Material

Most people would agree that there is material that is suitable for children, and material that is not. In addition, there may be material that should only be viewed by children under the supervision of an adult. There is wealth of information available on the Internet that fits in to each category. The Internet, however, being a non-centralized, non-controlled medium, has no way of categorizing what is suitable for which age group.

B. Regulating Content

Is it possible to regulate content on the Internet? And if it is possible, should it be regulated? Ask 100 people, and you will probably get as many different answers to these questions.

1. Can Content Be Regulated

There are several factors that effectively prevent the Internet from being regulated. First, it is an international medium, and as discussed previously, it is very difficult to come up with a set of standards that would be acceptable to all cultures. In addition is the problem of international enforcement. Second, the Internet is not controlled or owned by any single group or government. Therefore, no central group exists to enforce any rules that might be enacted. Third, the Internet is large and is growing constantly. Every day more and more web sites are appearing on the Internet. Many of these sites are created by individual users on various web servers. To maintain an up-to-date registry of all web sites on the Internet would be virtually impossible. Finally, Internet features such as Usenet and Internet Relay Chat offer thousands of discussions, either in real time or through a message board system. Usenet groups are appearing daily, and have more postings that can realistically be monitored. Chat topics vary considerably, and once offensive or indecent items are presented, it is impossible to "take them back".

2. Should Content be Regulated

Whether or not content should be regulated is almost irrelevant, since it is virtually impossible to do so. Despite this, the discussions and controversies continue. Supporters of free speech contend that regulating Internet content would amount to censorship, and that the inherent nature of the Internet as a medium where everyone can present their views in a public forum would be disrupted. Opposing them are those who believe that the Internet should be regulated in the same way as libraries, book stores, and broadcast media.

C. The Responsibility of Internet Users

If Internet content cannot be regulated, then we must look towards Internet users to be responsible in their postings. At the present time, it is estimated that there are as many as 8,000 sexually explicit sites on the World Wide Web. Although that may seem like a high number, it is actually only a small percentage of all the sites that exist. This shows that the majority of Internet users are being responsible in their postings on the World Wide Web. Despite any laws that may be enacted, there will probably always be those who will post offensive or indecent material. As is frequently stated with the debate over banning firearms, those who use them illegally will continue to obtain them. The same is true of Internet content.

D. Methods to Control Access to Questionable Sites

The Internet will probably continue to contain indecent and offensive material, so the question then becomes, what can we as users do? Most adults are capable of determining what is right and wrong, at least based upon their own values. But most children, especially young ones, haven't developed those capabilities. It becomes our responsibility as adults to protect our children.

There are several means of preventing access to offensive or indecent sites on the Internet.

1. Communications Decency Act of 1996

As discussed earlier, the Communications Decency Act of 1996 attempts to make criminal the display or transmission of indecent material to minors. This Act, if upheld by the United States Supreme Court, may be effective in prosecuting those within the United States who are involved in the dissemination of indecent or offensive material on the Internet. But since a significant portion of this material is produced overseas, our laws are ineffective in their courts.

2. Credit Card Verification

One method of restricting access to sites considered improper for minors but acceptable for consenting adults is the use of credit card verification. Many sexually explicit commercial sites are already using this method in order to charge users for access. The use of credit card verification would be relatively effective because minors generally do not have access to credit cards. However, minors could use credit cards that do not belong to them in order to obtain access. The use of credit card verification is most feasible for commercial sites where a verification is made by the credit card bureaus prior to a charge being imposed. However, non-commercial sites would probably be subject to significant charges from the credit card bureaus in order for the verification process to be completed since no financial transaction is involved.[60]

3. Adult Identification Codes

There are currently third-party entities on the Internet that provide any adult with an identification code for a yearly fee of between five and ten dollars.[61] Each questionable web site could require such an identification code in order for an individual to obtain access. On the surface, this appears to be a very viable option, at a low cost to everyone. However, it establishes a registration of everyone who requests and adult identification code, an idea that may not be acceptable to many users.

According to the Reno v. ACLU Appeal to the Supreme Court, adult identification codes require the use of the Common Gateway Interface (CGI) Script. CGI Script is "just programming with some special types of input and a few strict rules on program output."[62] It allows for forms where users can provide input which is analyzed by the server. Opponents contend that using CGI Script would be unreasonably expensive for most Internet developers. However, others state that it is "astoundingly simple".[63] Whether it can efficiently be used to screen for age is still to be determined.

4. The Government's Tagging Proposal

In the ACLU v. Reno CDA Challenge in Philadelphia, the Government proposed the use of "tagging" to restrict children from accessing indecent sites. Tagging requires content providers to label all of their offensive or indecent material by imbedding a string of characters, such as "XXX", either in the URL or HTML.[64] The Internet user would install software on their computer to screen out sites containing this tag. In theory, this proposal sounds very effective; however in practice, it may not be, since there is currently no way to ensure that all sites throughout the Internet (both domestic and abroad) would be accurately tagged.

5. Software Blocking Programs

Numerous software blocking programs have been developed recently to address parental concerns about their children accessing offensive and indecent material on the Internet. Some of these programs are free, while others cost up to $50.00.[65] Most of the commercial online providers such as America Online contain free parental controls that can be activated easily. However, all of the software blocking programs require constant monitoring of new Internet sites for child-safe material.

The following is a summary from the Cato Institute of several commercially available software blocking programs.

NetNanny: Cost - $39.95 (free updates). "Real-time monitoring of Web sites, newsgroups, FTP, Internet Relay Chat (IRC), and e-mail for keywords. Users can add terms to keyword dictionary, which is keyword updated bimonthly. Also allows users to opt between exclusive and inclusive lists. Users can add or subtract sites from lists. Can block child from revealing information such as names or credit card numbers. Estimated 150,000 to 200,000 copies distributed nationwide."[66]

CyberSitter: Cost - $39.95 (free updates). "Exclusive blocking only. Logs Internet activity, controlling access to Web, newsgroups, IRC, and e-mail. Lets parents block, block and alert, or alert when certain sites are accessed, including SafeSurf or RSACi "bad site" lists. Lists can be customized. Restricts searches using context-sensitive phrase filtering. Over 100,000 copies distributed."[67]

Specs: Cost - $39.95. "Inclusive (access to sites rated safe by NewView), per year semiexclusive, or exclusive limits on Web, IRC, NewView newsgroups, Telnet, FTP, and e-mail. Inclusive setting offers kids' directory of 150,000 sites, about 1 million Internet pages. Semiexclusive offers the directory, and uses dictionary to check unrated sites. Very new pure exclusive setting blocks 2,000 sites. Allows parental override."[68]

SurfWatch: Cost - $20.00 (updates $5.95 a month, some ISPs offer free updates). "Exclusive blocking of Web, chat, newsgroups, and FTP sites. New release will include inclusive blocking; "safe" lists offered in partnership with rating services will range from 3,000 to 50,000 sites."[69]

CyberPatrol: Cost - $29.95 with 3 months free updates (future 6-month updates $19.95). "Exclusive blocking of CyberNOT or SafeSurf list, or inclusive access to CyberYES list. Optional keyword blocking. Updates downloaded automatically every seven days. Screens Web sites, IRC, and newsgroups. Sites can be added or reinstated manually. Can restrict time spent online. Can stop child from revealing name, address, and credit card numbers in chat rooms. Separate settings for up to 10 children."[70]

InterGo: Cost $49.95. "Inclusive or exclusive. Can be set to access only SafeSurf's "white" list. Or, older users are sent to Web listing of 3,500 sites rated by age group; parents can add sites as "bookmarks". KinderGuard Web crawlers search content of unrated sites, block "adults only" (about 25,000 sites as of August 5, 1996, updated weekly). Parents can override ratings, rate unrated sites."[71]

6. Parental Responsibility

While many people are turning to hardware and software to restrict access to adult sites on the Internet, many are forgetting the responsibility of parents. Just as some parents use the television as a means of keeping their children occupied, others are now turning to the computer. There are many high quality educational and child-friendly sites available on the Internet, but as has been discussed, there are others that are inappropriate for children. There are laws in place that restrict television stations from broadcasting certain material during daytime hours when children are more likely to be watching. But the Internet has no such laws, and many parents continue to let their children access the Internet unsupervised.

Let us assume for the purposes of this discussion that the Internet is a public forum. Virtually everyone has access, and virtually everyone can go everywhere. When parents allow their children to access this forum unsupervised, they need also to ask themselves what other public forums they would let their children visit unsupervised. At what age is a child old enough to go to the mall unsupervised? At what age is a child old enough to make a trip to a downtown city unsupervised? It is doubtful that parents would allow their ten year old child to go to the mall unsupervised, and it is equally doubtful that parents would allow their fourteen year old child to go to the city unsupervised. So why then are the same children allowed to use the Internet unsupervised?

Now let us return to the analogy with the television. Most parents do not allow their children to have a television in their bedroom, at least until they reach a certain age. The reasons are twofold. First, they want to ensure that their children do not spend all their time watching television. Second, they want to have some supervision over what their children watch. At the same time, however, the family computer is often located in an office or bedroom, away from the frequent path of most family activity. If the television belongs in the family room to ensure some level of parental supervision, shouldn't the family computer as well?

Many parents argue that with all the offensive and indecent material available on the Internet, they would rather not let their child access the Internet at all. With some simple steps however, such as using a blocking program or direct supervision, they can prevent their children from accessing most, if not all, of that material. They will still have access to all the quality educational and child-friendly sites on the Internet. I like to compare this to the neighborhood bookstore. Most bookstores sell material that has been classified as unsuitable for minors, such as pornographic magazines. They also sell romance novels and erotica. But I think few parents would ever consider preventing their children from reading a book or entering the bookstore just because some of this material exists. A certain amount of trust has to be placed in both the sales clerk and the child so that the child will not walk out of that store with unsuitable material.

VIII. Conclusions

In the upcoming months, we will see the decision of the United States Supreme Court in the Reno v. ACLU appeal. Software blocking programs will continue to be updated and new ones will be developed. At the same time, new sites will appear on the Internet daily, and the debate over offensive and indecent material is certain to continue.

But what can we do in the meantime? As Internet developers, we can ensure that sites developed by us or those under our supervision are suitable for all ages. If we must include material that could be considered questionable, we should be sure to note it from the beginning. As Internet users, we can support those sites that we find most appropriate. We are most likely to send letters of disdain to those we feel are inappropriate, while we forget to send letters of esteem to those we feel are child-friendly or contain quality material. As parents, we can invest in software blocking programs and ensure that they are updated regularly. In addition, we can move the computer from the office in the back of the house to a more public location. We can spend time with our children teaching them what is appropriate according to our values, and how to protect ourselves from that which we consider inappropriate.

Most importantly, we need to recognize that for the general public, the Internet is a new technology. It will continue to go through changes over the next few years, with new sites and features coming and going. In the decades that have passed since the introduction of the radio and later the television, people have learned how to use them responsibly. The same will happen with regard to the Internet -- in time.


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[3] Shea v. Reno CDA Challenge Decision. U.S. District Court for the Southern District of New York. [Online]. Available at

[4] ACLU v. Reno

[5] ACLU v. Reno

[6] Uzwiak, Brian J. "United States Obscenity Law: From Confessions of a Lady's Waiting Maid to". (1997, March 28). [Online]. Available at

[7] Uzwiak, Brian J.

[8] Uzwiak, Brian J.

[9] Uzwiak, Brian J.

[10] Uzwiak, Brian J.

[11] Uzwiak, Brian J.

[12] Uzwiak, Brian J.

[13] Uzwiak, Brian J.

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[15] Communications Decency Act

[16] Communications Decency Act

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[20] ACLU v. Reno

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[22] ACLU v. Reno

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[24] ACLU v. Reno

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[27] Shea v. Reno

[28] Shea v. Reno

[29] Shea v. Reno

[30] Shea v. Reno

[31] Shea v. Reno

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[33] Department of Justice Brief

[34] Department of Justice Brief

[35] Department of Justice Brief

[36] Department of Justice Brief

[37] Department of Justice Brief

[38] Department of Justice Brief

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[40] Communications Decency Act

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[43] Brief of Appellees, ACLU, et. al. (1997, February 20). [Online]. Available at

[44] Brief of Appellees, CIEC, et. al. (1997, February 20). [Online]. Available at

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[48] Reno v. ACLU

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[56] United States Senate Counterterrorism Act (S. 735). (1995). [Online]. Available at

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[62] Gundavaram, Shishir. CGI Programming. O'Reilly & Associates, Inc. 1996. p 1.

[63] Gundavaram, Shishir. p 1.

[64] ACLU v. Reno

[65] Bernstein, Solveig

[66] Bernstein, Solveig

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[71] Bernstein, Solveig

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